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NLRB officially goes to pot

Though many employers may have felt that the NLRB has been "going to pot" for years, the NLRB's Office of General Counsel, Division of Advice, made it official with the August 7 release of an Advice Memorandum from late 2013 that indicates that the Board will assert jurisdiction over many commercial marijuana processing and distributing businesses. On consideration of the question of the Board's jurisdiction over a business called Maine Wellness, "an enterprise that grows, processes, and retails medical marijuana," the Division of Advice takes the position that the enterprise is within the jurisdiction of the NLRB if it satisfies the monetary threshold for jurisdiction. According to the memorandum, the business satisfies the interstate commerce requirement for Board jurisdiction because it purchases equipment and supplies in other states, even though all the production of the business flows to medical marijuana dispensaries in Maine. The assertion of jurisdiction gives the Board an entry to regulate a business that is growing like a weed in many parts of the country. Agricultural employees – workers who plant, cultivate, and harvest – are exempt from the NLRA, but agricultural processing employees are not. Labor unions, including the Teamsters and the UFCW, are already attempting to organize workers in the marijuana industry.

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